AS TO THE ADMISSIBILITY OF
Application No. 34618/97
by Barbro JOHANSSON and Sven PETTERSSON
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 16 April 1998, the following members being present:
MM J.-C. GEUS, President
M.A. NOWICKI
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 22 December 1996
by Barbro JOHANSSON and Sven PETTERSSON against Sweden and registered
on 28 January 1997 under file No. 34618/97;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicants, a cohabiting couple, are Swedish citizens. They
were born in 1952 and 1954, respectively, and reside in Saltsjö-Boo.
Before the Commission they are represented by Mr Lennart Hane, a lawyer
practising in Stockholm.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
On 30 April 1996 the president of the Social District Council
(områdesnämnden - hereinafter "the Council") of Boo decided, pursuant
to Section 6 of the Act with Special Provisions on the Care of Young
Persons (Lagen med särskilda bestämmelser om vård av unga, 1990:52;
hereinafter "the 1990 Act"), immediately to take the applicants' son
L, born in 1987, into public care on a provisional basis. The decision
was effected the same day.
On 9 May 1996 the County Administrative Court (länsrätten) of the
County of Stockholm confirmed the Council's decision. The court noted
that the applicants had been abusing alcohol and narcotics for several
years. Apparently, this had affected L who, according to his teachers,
had a self-destructive behaviour at school. The day before the
Council's decision was taken, i.e. on 29 April, a friend of the first
applicant had visited the family and had found the applicants in a
state of intoxication. The first applicant had been bleeding from the
head and blood had been found on the floor of the hall and the kitchen.
Under Section 8 of the 1990 Act, the Council could apply for a
care order concerning L within four weeks from the day its provisional
decision had been put into effect. Finding it necessary to make a
psychological examination of L, the Council requested an extension of
that time-limit. By decision of 21 May 1996, the County Administrative
Court granted the request and extended the time-limit until 18 June.
On 28 May 1996 the Administrative Court of Appeal (kammarrätten)
in Stockholm upheld the County Administrative Court's decision of
9 May.
On 18 June 1996 the Council applied to the County Administrative
Court for a care order. The Council submitted a written opinion given
by two psychologists appointed by the Council, according to which L had
certain emotional problems which required professional treatment. The
court held an oral hearing in the case on 1 and 2 July during which it
heard evidence from, inter alia, a psychologist proposed by the
applicants. That psychologist criticised the above written opinion.
Contrary to the psychologists appointed by the Council, he found no
evidence that L had emotional problems. L's behaviour rather indicated
that he had not been negatively affected by any conditions in his home.
Moreover, relations between him and his parents were good.
By judgment of 4 July 1996, the County Administrative Court
rejected the Council's application. The court noted that, after the
provisional taking into care of L, the applicants had refrained from
using drugs and had started to undergo treatment. Furthermore, the
evidence in the case - including the statements made by several
witnesses before the court - indicated that L was a happy young boy who
was well-adapted to friends and school and had good relations with his
parents. Accordingly, the public care of L was discontinued.
On 25 July 1996 the Supreme Administrative Court (Regerings-
rätten) refused leave to appeal against the Administrative Court of
Appeal's decision of 28 May.
COMPLAINTS
1. The applicants complain that the provisional taking into care,
which was allegedly made to facilitate an unnecessary psychological
examination of L, violated their right to respect for their family life
under Article 8 of the Convention.
2. The applicants contend that the County Administrative Court and
the Administrative Court of Appeal, in confirming the Council's
decision on provisional care, were not impartial as they failed to take
proper account of the applicant's submissions in the case. They invoke
Article 6 of the Convention.
Furthermore, the applicants claim that the taking into public
care is generally considered as beneficial to a child from a home
which, on the face of it, appears unstable. Allegedly, the courts'
reliance on opinions given by psychologists endangers the judicial
control of the public care. In this respect, they invoke Article 17
of the Convention.
THE LAW
1. The applicants complain that the provisional taking into care
violated their right to respect for their family life. They invoke
Article 8 (Art. 8) of the Convention which provides the following:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic
society in the interests of national security, public
safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of
health and morals, or for the protection of the rights and
freedoms of others."
The Commission recalls that the public care of L was discontinued
on 4 July 1996 following the County Administrative Court's rejection
of the Council's application for a care order. However, between
30 April and 4 July, L was in public care on a provisional basis. The
Commission finds that the provisional care interfered with the
applicants' right to respect for their family life as ensured by
Article 8 para. 1 (Art. 8-1) of the Convention. It must therefore be
examined whether that interference was justified under the terms of
Article 8 para. 2 (Art. 8-2). In this respect, the Commission finds
that the relevant decisions were in conformity with Swedish law.
Moreover, the interference had a legitimate aim, namely the interests
of the child, which in this case fall under the expressions "for the
protection of health or morals" and "for the protection of the rights
and freedoms of others".
It thus remains to be determined whether the interference was
"necessary in a democratic society" in the interests of the child. The
Commission recalls that the County Administrative Court confirmed the
Council's decision on provisional care, having had regard to the
applicants' long-standing abuse of alcohol and narcotics, to the
statements by L's teachers that L had a self-destructive behaviour and
to the events which immediately preceded the provisional taking into
care. In the light of the foregoing the Commission finds that the
provisional care of L was supported by relevant and sufficient reasons
and that, having regard to their margin of appreciation, the Swedish
authorities were reasonably entitled to think that it was necessary to
take L into care on a provisional basis. Moreover, the psychological
examination of L must be considered as a relevant measure in cases like
the present one where it is to be determined whether there are
sufficient grounds for committing a child to public care. Accordingly,
the Commission concludes that the relevant decisions can reasonably be
regarded as "necessary in a democratic society" within the meaning of
Article 8 para. 2 (Art. 8-2) of the Convention.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicants contend that the courts, in confirming the
Council's decision on provisional care, were not impartial as required
by Article 6 (Art. 6) of the Convention. Furthermore, they claim that
the courts' reliance on opinions given by psychologists endangers the
judicial control of the public care. In this respect, they invoke
Article 17 (Art. 17) of the Convention.
The Commission finds that the applicants' submissions fail to
substantiate their claim that the courts deciding in the case were not
impartial. In so far as the allegation concerning the courts' reliance
on psychologists' opinions refers to the present case, the Commission
recalls that the County Administrative Court, by judgment of 4 July
1996, rejected the Council's application for a care order concerning
L although the psychologists' opinion adduced by the Council appeared
to support the application. The court gave its judgment after having
had regard to all the evidence in the case, including statements given
by the psychologist proposed by the applicants and several other
witnesses. It appears that the court assessed the evidence
independently and that it did not consider itself bound by conclusions
drawn by certain psychologists. In view of the above, the Commission
finds that the present complaints fail to disclose any appearance of
a violation of the rights and freedoms of the Convention and in
particular the Articles invoked.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER J.-C. GEUS
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy